IMPLEMENTING THE PUBLIC TRUST IN PALEONTOLOGICAL RESOURCES

JOSEPH L. SAX

James H. House & Hiram H. Hurd Professor

Boalt Hall (Law School), University of California, Berkeley, CA 94720

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AbstractThe historic public trust relating to navigable waters is not directly applicable to the federal public lands. But
the broader public trust principle that knowledge is in the public domain provides an important rationale for protecting
scientifically significant fossil resources. Since paleontological knowledge is embedded in material objects (fossils) and in
information provided by their site, the trust principle denies any right to disturb, destroy, or possess fossils so as to impair their
scientific significance. Laws that require permits for excavation; that impose restrictions on permits so as to protect and
preserve knowledge and opportunities for scientific work; and that assure safeguarding of significant materials in appropriate
repositories; are all appropriate to implement the public trust. In principle the trust applies to scientifically valuable fossil
resources wherever they are found. The United States has thus far been slow to adopt some of the legislation necessary to
implement public trust obligations in the field of paleontology, though a range of practical and known legislative techniques are available.

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LEGAL STATUS OF THE PUBLIC TRUST CONCEPT AS APPLIED TO THE FEDERAL LANDS

The public trust as a legal concept exists in several different
forms. In its most familiar setting it is a common law (judicially developed)
concept drawn from Roman Law that recognizes a public right in navigable waters
and the lands under them, and sometimes in the seashore. This doctrine has been
widely adopted in the United States and is implemented independently by each
State of the Union, and not as a matter of federal law. This judicially fashioned
and implemented historical trust has never been understood to apply to the federal
lands (1970; 1980).

Though it has not been authoritatively settled by the
U.S. Supreme Court, the general understanding is that the
United States_insofar as the federal lands are concerned_has
only those obligations that it imposes upon itself by statute, or
by regulation or policy pursuant to statutory authorization.
Thus, Congress may (and sometimes does) determine that
certain of its resources are held in public trust. It then constitutes
the United States as a trustee of those resources and
determines the scope and content of its trust obligation. It has
recognized itself as a trustee in some statutes, sometimes
explicitly, sometimes implicitly (that is, without using the term
trust or public trust in so many words). The important point is
that courts look to federal statutes and regulations, and not
to common law principles, to determine the presence or
absence of a trust obligation governing the federal lands, and
to the scope of any such obligation.

There is no general statute governing protection of paleontological resources
on the federal lands (1987;1994) as there is for archeological resources under
the Archeological Resources Protection Act, known as ARPA (1979). ARPA expressly
excludes paleontological remains from its coverage, except those associated
with archeological sites. There are, however, some statutes that explicitly
provide fossils protection in various specific settings (1975;1980a; 1988; 1994a).
In addition, Congress has provided for fossil protection in various areas, such
as the Florissant Fossil Beds National Monument in Colorado (1969), Fossil Butte
National Monument in Wyoming (1972) and Agate Fossil Beds National Monument
in Nebraska (1969a) by bringing those areas under the jurisdiction of the National
Park Service and thereby (1970a) under the protection afforded by the National
Park Service Organic Act, and the Regulations and Management Policies of the
Park Service (1916; 2001; 2001a). Federal laws of broad application, such as
the Federal Land Policy and Management Act (1976), which governs the public
lands managed by the Bureau of Land Management, can provide implicit protection
for fossils through provisions that call for the public lands to be managed
in a manner that protects the quality of scientific, historical, archeological
and other values . Statutes such as these authorize the promulgation of administrative
directions providing detailed protection and management of fossil resources
on public lands. Among the regulatory protections provided are provisions that
collections shall be deposited in public museums and must be accessible to the
public (2001b).

One may appropriately characterize the
above-mentioned statutes and implementing regulations as recognition by
the Congress and federal agencies of a federal "public trust"
responsibility (1995). Indeed, the Secretary of the Interior in
a report on fossil protection, explicitly spoke of "keeping
these scientifically important specimens in the public trust." (2000).

One of the central elements of "public trust" as a legal concept
is that government is not merely empowered to act to protect certain interests,
but bears an obligation to protect interests that are fundamentally important
to the nation. The most familiar setting in which governments acknowledge a
trust responsibility is where national history is concerned.. It would be difficult
to imagine a nation worthy of the name that did not consider itself obliged
to protect the records of its founding (such as the Declaration of Independence),
or to memorialize its great catalyzing events (such as the Revolutionary and
Civil Wars). It is also conventional for nations to preserve and protect the
symbols as well as the substance of its epochal achievements in art, literature,
and science. In adopting official acts to memorialize these events and to recognize
and perpetuate these achievements, government acts as a trustee. Nevertheless,
for the most part, nothing compels government to take on the role of trustee.
Its responsibility is ultimately to history (1986, 1991), and at times governments
fail disastrously, as all the world witnessed in the wave of cultural vandalism
that swept through Afghanistan in the first months of 2001 (2001c).

THE PUBLIC TRUST CONCEPT AS A GUIDELINE FOR PROTECTION OF PALEONTOLOGICAL RESOURCES
ON THE PUBLIC LANDS

How does one identify those responsibilities that
should engage the government's role as a public trustee? How
should the trust concept apply to fossils on the federal public
domain (and elsewhere)? Broadly stated, public trust
describes those things that by their nature are understood to belong
in the public domain as the common heritage of all, and as
primary elements of a community's common history,
experience and aspirations. Probably the single best known
element of this heritage is knowledge: what we take from
the past, share, build on, and pass forward through the
generations. Knowledge, along with our genetic heritage, are
our most fundamental common possessions.

The commitment of civilized communities to
safeguarding their common heritage by investing relevant
resources with a special public character is the essence of the
public trust. It finds recognition in various settings in our legal
system, as to knowledge, most notably in the theory
underlying the limitations on proprietary rights in our laws
governing matters such as patent and copyright. No one can
patent (that is, privatize, even for a limited time) the theory of
relativity, or the concept of immunization against disease.
Nor can one obtain a copyright on the theme of Greek tragedy,
in the Romeo and Juliet story; or in the idea of the
impressionist painting. These basic elements of knowledge or
inspiration are understood as belonging to the public, and must
remain in the public domain. The same reasoning counsels
that no one should be permitted to privatize the knowledge
that collectively constitutes the field of paleontology. When
government implements that principle by regulation
governing excavation, use, and ownership of fossils of scientific
importance so as to assure that knowledge is not lost to the
public and to posterity, it acts appropriately as a public trustee,
in accord with accepted public trust concepts.

Fossils present a distinctive (though not unique) setting for the application
of the trust principle. Fossils are material objects that contain scientific
knowledge within them or in their context. Unlike mathematical knowledge, or
knowledge of a theory of physics, paleontological knowledge is embedded in a
physical object and in a physical context. The information which the physical
object contains is entitled to the same protection under the trust concept as
is other knowledgethat is, it should be protected as a public good for
public use and benefit. However, most knowledge, like the discoveries of mathematics,
is not entwined with physical objects that superficially look like any ordinary
object that can be held as private property. Therefore, some special rules are
needed for the protection of objects like fossils that bear knowledge or ideas
within material objects. While a significant vertebrate fossil and a lump of
coal may seem to be similar objects that the laws of property would treat similarly,
they are not. For example, there is no particular reason why coal or oil lying
under the public lands should not become ordinary private property, to be disposed
of at the will of a private owner, so long as the public is appropriately compensated..
But that is not at all the case with a scientifically important fossil found
on the public lands (or, as we shall see, on private land either)..

Recognition of this unusual situation (knowledge
physically contained within a material object) explains why
the legal standing of scientifically valuable fossils needs to
be differentiated from the legal status of other things found
on or under the ground, such as coal or oil or diamonds,
even though they may also be fossilized remains. (In this
respect, scientifically valuable fossils are more analogous to
archaeological remains found on the land than they are to other
sorts of fossilized materials). This distinction between the
mere material-object value of something from its
scientific/educational value explains why federal statutes should declare
objects such as scientifically valuable fossils to be in the
public trust, and to protect them for their scientific and public value.

To implement the public trust principle as to
paleontological knowledge, the law (law as used in the following
pages refers to federal statutes) needs to separate out the
merely material object-value of a fossil (and its setting) from its
scientific value. The former (the material object-value) can
properly be treated in whatever conventional ways objects on
the particular public lands are treated; but the latter
(scientific value) deserves to be safeguarded as an inalienable
element of the public domain. This might at first seem a
formidable task, but in practice it is not so difficult.

To take but one example, while significant fossil specimens no doubt belong
in museums where they are available for scientific and public access, as far
as public trust responsibilities are concerned, there should be no objection
in principle to allowing casts to be made and marketed to collectors, so long
as the work can be done without risk of damage to the specimen. Apparently there
is considerable variation in policy among major museums today, some of which
prohibit the making of casts, while others allow them solely for research purposes
but not for sale, and still others permit marketing of casts, retaining a royalty
payment to the institution that owns the original specimen. As to this latter
point, nothing in public trust principle dictates how (or whether) economic
benefits derived from such practices are allocated, so long as financial arrangements
do not interfere with public access or with research.

Another example, though not involving public
property, is familiar in American law: the historic preservation
ordinance (1978). A private building designated as a
landmark because of its historic or architectural values, may be
used for ordinary private purposes_as a home, an office
building, or a railway station_so long as the owner does not modify
or demolish those elements of the building that have
historic and/or architectural heritage value, such as the facade.
While such ordinances are usually adopted on a local
(municipal) level, and thus may vary from one place to another, they
are generally quite consistent in permitting economically
productive private uses so long as those uses are consistent
with the historic or architectural values the ordinance aims to
protect.

Yet a third technique, well developed in English
law, employs a positive incentive approach to protecting
public trust values in material objects. In that country
individuals who inherit objects designated as having national
heritage value (which objects may range from manuscripts, to
furniture, paintings and stately homes) are immunized from
payment of inheritance tax on the objects if they agree to
make the objects accessible to the public on reasonable terms.
Some owners open their houses on certain dates to public
visits; some deposit paintings or sculptures in local museums
at certain times; others, by special pre-arrangement, allow
visitors to come to their homes (1999). It would be quite
easy for the United States to adopt a variant of this approach
addressed to private owners of important fossils (or
other artefacts). For example, a procedure might instituted
through which fossils of "national scientific significance" could
be identified by a council of experts. Private collectors
who owned such objects, and were willing to make them
accessible to researchers and to the public on specified terms,
could seek to have them certified as being of such
significance. Upon certification, and upon making arrangements for
access (for example, by loan to a major museum at certain
intervals or for a certain time), the owner would qualify for
a tax benefit. The benefit might consist of a charitable
deduction, a partial exemption from estate tax (if it remains in
effect), or some other such financial benefit. While the
United States Treasury has generally been opposed to
tax-benefit proposals that are not revenue-need-based, the fact
remains that such devices are the most attractive non-coercive
means to encourage private owners of publicly-valued objects
to acknowledge the public interest in their collections.

In each of these otherwise diverse instances, the
law has shown itself capable of sorting out those elements of
an object's possession or use which relate only to its
material-object value_whether recreational, economic, or
familial from those elements, such as transcendent scientific,
artistic, or scholarly values, that define it as having public
trust significance.

The techniques by which various nations acknowledge and protect public trust
properties are numerous, and well established throughout the world. Export limitations
are commonplace, where heritage items, such as antiquities or great works of
art, have special significance to a national community (1989). Commonly certain
objects cannot be sold out of the country until the government has had an opportunity
to purchase it for a museum at home (though raising sufficient funds is often
a formidable task). While the owner is ordinarily compensated, he/she is obliged
at least to tolerate some delay, and thereby perhaps some diminution of international
market opportunities, in order to assure protection of the public trust element
in the property.

What is required in each such case is a legal regime
that prohibits collection, possession, removal, or ownership
in ways that diminish or destroy cultural or scientific value,
or that interfere with scientific study of the object. If it is
determined that the object has no discernible potential for
scientific study or use (as may be the case with most
non-vertebrate fossils, or other common fossils) or that such
potential has been exhausted (a site has been fully studied and
documented), then the object may appropriately be relegated
to rules that generally govern ordinary property.

THE SHAPE OF A PUBLIC TRUST LEGAL REGIME FOR THE PUBLIC LANDS

What would a public trust regime for public
domain paleontological resources look like? Basically, it would
be similar to the recommendations set out in the May,
2000, Report of the Secretary of the Interior on Fossils on
Federal and Indian Lands, and to the basic administrative rules
that are now in place on the part of federal land management
agencies, as summarized in that report (p. 20). It would,
however, be appropriate to have a single federal paleontological
protection statute, similar in scope and structure to the
Archaeological Resources Protection Act (1979), setting out
general public trust management principles for all federal
agencies and federal lands. In brief, such a statute would:

 Declare that paleontological resources on
the public lands have value for scientific study and
research and education, both in themselves and in their context, and are held in public trust in
order to protect and preserve those values.

 Provide for inventorying and monitoring of
scientifically valuable sites.

 Provide for adequate enforcement to protect
sites from unauthorized collection, and to
penalizeat levels that are sufficient for
deterrenceunauthorized collecting and disturbance of sites..

 Provide a permit system to restrict collecting
so as to assure the safeguarding of scientific and
educational values.

 Retain all scientifically valuable specimens in public ownership and
house them in repositories so as to assure access in perpetuity for scientific
study and public education.

 Subordinate private possession and use to
public trust interests on a permanent basis, while
permitting collection and possession of common
fossils by amateurs on those federal lands where the
governing mandates are consistent with such activity.

BEYOND THE PUBLIC LANDS

The foregoing discussion of public trust principles
should make clear that the public interest in scientifically
valuable paleontological resources does not vary, depending on
where they are found. However, in the United States
paleontological remains on private lands are generally treated as
ordinary private property. (1993). The United States is unusual in
this regard. Many_probably mostcountries treat culturally
or scientifically valuable relics, whether human-made or
natural, as either an endowment belonging to the nation or,
at least, as a limited sort of private property subject to
regulatory regimes that protect the public trust interest it the
object (1984). This is true not only of countries with quite
different conceptions of private property, such as Turkey (1997),
but also to nations with property systems very much like our
own. For example, some Canadian Provinces designate all
paleontological resources found within its territory as the
property of the Province (1994b). While other countries
usually provide some measure of compensation, as a reward or
incentive, to finders or landowners, the United States is
almost alone among nations in taking an essentially hands-off
position as to such materials on private lands, unless they
are human remains (1999).

Landownership of the site where fossils are
discovered, however, should not be the sine qua
non for public control of the fate of scientifically significant fossils. A wide
range of legal strategies is potentially available for bringing
private or tribal lands within the ambit of public trust
protection. One might do as little as require public notification
of proposed excavation activities, with a public right of
first refusal to acquire authority to explore a site, to study
and/or to collect significant fossils from it. Alternatively, laws
can be enacted to establish a regulatory scheme governing
registration and qualification of private entities engaged in
fossil collection, limiting permission to properly trained and
qualified persons, and regulating methods of excavation.

There is no reason to believe that modest regulatory restrictions of the sort
suggested in the preceding paragraph would give rise to constitutional objections,
either as to the scope of congressional authority or as to violation of private
property rights. Federal authority to regulate interstate, international, and
tribal commerce would undoubtedly be ample to regulate activities that result
in trade and commerce in fossils by collectors and institutions. Nothing in
the several recent U.S. Supreme Court cases (2000a; 1995a) confining the congressional
commerce power to protection of things in interstate commerce, or having a substantial
relation to interstate commerce, would put into question legislation governing
the unquestioned national and international commerce in fossils growing out
of excavations on private lands. Nor would such regulation transgress the constitutional
prohibition on taking of private property for public use without the payment
of just compensation. The reason is that regulation of the sort suggested above
would neither constitute a total deprivation of value under the Supreme Court
ruling in the Lucas case (1992) nor would the character of the government
action or its economic impact violate the standards set down in the Court's
Penn Central decision (1978).

In addition to, or instead of, the regulatory regime
proposed here, Congress could employ any of a variety of
positive incentives, such as tax credits for permitting
scientific access and study, or for various forms of cooperation
with public museums or universities. Even the most minimal
such provisions would acknowledge recognition of the
presence of a public trust interest in fossils notwithstanding their
location and their ownership.

The passive position taken by the United States in
regard to locations other than the federal lands apparently
explains the view taken by the Department of the Interior
that as to fossils found on Indian lands "it is up to the
Indian landowner...to determine who has access to their lands
and under what conditions..." and that the sole role of the
Bureau of Indian Affairs is to review contracts or leases of
Indian lands for the extraction of fossils to assure that they "are
of economic benefit to the Indian landowner."
(2000)(the Secretary's approval role has recently been further
narrowed by Congress, see 25 U.S.C. § 81). Though the government
is understandably and appropriately deferential to tribal
legislative authority on reservation land (1996), its view of
the government's "trust" obligation to Native Americans in
purely economic terms, taking no account of the broader public
trust interest in the fossils, whether on Indian land or elsewhere,
is at best distressingly narrow, and reflects no inclination
to find ways to accommodate the two distinctive trust-type
obligations the United States bears, to tribal
autonomy and to our common evolutionary heritage.

As a practical matter, failure to take cognizance of significant fossils wherever
they may be found probably subverts any effort at effective enforcement even
of fossil resources on the public lands. For example, usually one of the most
effective ways to address unauthorized collecting/looting on public lands, is
to implement a permit and registration system that can be followed to auction
markets and other collector sale sites. Unless some sort of permitting or at
least some registration system applies to non-federal lands as well as to the
federal lands, leading to a certification-of-origin requirement, there is often
no effective way of determining whether objects that move into the collector
market have been illegally removed from the federal lands (1994). The Supreme
Court has sustained laws based on this sort of need for administrative coherence
in upholding a law governing trade in eagle feathers (1979a).

In any event, the notion that government is powerless to protect trust values
found on private (or Indian) lands is dubious, both in law and in fairness.
The well-established precedents for regulation of private owners of designated
historic landmarks could certainly be adapted to lands containing valuable fossils.
A recent modest proposal by an English expert for protection of buried antiquities
could easily be adapted to this country and to fossils: The owner would have
good title, but that title could only be secured by reporting the find, and
securing the site for a specified period, with authority in a designated public
authority to determine whether or how exploration could go forward, and in the
event to provide compensation against loss, or to confirm the private title
and right. Failure to report and to await a scientific judgment on further development
would subject the owner to fines and penalties.

Implementation of even the most modest of such proposals would constitute a
major step forward in implementation of the public trust in paleontological
resources.